IN THE SUPREME COURT OF INDIA

CRIMINAL APELLATE JURISDICTION

CRIMINAL APPEAL 435 OF 2008

Maqbool @ Zubir @ Shahnawaz & Anr.           …Appellants

Versus

State of A.P.        …Respondent

JUDGMENT

Swatanter Kumar, J.

1. The present  appeal  is  directed  against  the  Judgment  of  the  

High Court of Judicature of Andhra Pradesh at Hyderabad dated 27th  

February, 2007 wherein the Court passed the following judgment of  

conviction and order of sentence:

“Crl. A. No. 1825 of 2004 is allowed in  part.  The convictions and sentences imposed  on  A.1  for  the  offence  under  Section  302  I.P.C. and Section 3 r/w 25 (1-B) (a) of Arms  Act  are confirmed.   The conviction  imposed  on A.2 for the offence under Section 302 r/w  109 I.P.C. is modified and he is convicted for  the offence under Section 302 r/w 34 I.P.C.  and sentenced to suffer imprisonment for life  and also to pay a fine of Rs.1,000/- in default,  to suffer 6 months simple imprisonment. The  conviction and sentence imposed on A.1 and  A.2 for the offence under Section 120-B I.P.C.  is  set  aside.  So  far  as  A.4  and  A.6  are  concerned, they are found not guilty for any of  the offences under Sections 120-B and 302  r/w  Section  109  I.P.C.  and  accordingly,  the  convictions and sentences imposed on them  for  the  said  offences  are  set  aside.  Therefore, A.4 and A.6 shall be set at liberty  forthwith if they are not required in any other  crime.  The fine amount, if any, paid by them  shall be refunded.

Crl.A.  No.1886 of  2004 is allowed and  the  convictions  and  sentences  imposed  on  A.8  for  the  offences  under  Sections  120-B  and 302 r/w Section 109 I.P.C. are hereby set  aside.  He shall  be set at liberty forthwith,  if  not  required  in  any  other  crime.   The  fine  amount, if any, paid by him shall be refunded.  

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Crl.A.  No.2220 of  2004 is allowed and  the  convictions  and  sentences  imposed  on  A.3 and A.5 for the offences under Sections  120-B  and  302  r/w  Section  109  I.P.C.  are  hereby set aside.  They shall be set at liberty  forthwith,  if  not  required  in  any other  crime.  The fine amount, if any, paid by them shall be  refunded.”

2. As is apparent from the above judgment of the High Court that  

it  modified the judgment of the Trial Court  insofar as conviction of  

accused No.A2 was concerned.   However, it  completely acquitted  

accused A3 to A6 and A8 of all the offences.   From the record, it  

appears that A7 was merely the author of the diary and was charged  

along with other accused of the offence under Section 396 of the IPC  

and  for  that  offence,  the  Trial  Court  had  in  fact  acquitted  all  the  

accused of  this  charge including A7.   At  the very outset,  we may  

notice that no appeal has been preferred against their acquittal  by  

the State or the competent authority.  Thus, in the present appeal we  

are only concerned with the appeal of accused Maqbool @ Zubir @  

Shahnawaz  and  Mohd.  Feroz  Khan  @  Feroz  referred  to  as  

appellants herein.

3. The prosecution had brought before the Court of Session nine  

accused to face the trial.  Out of these, one Azam Ghori is stated to  

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have been killed in an encounter on 6th April, 2000 and consequently  

proceedings against him came to an end. While other eight accused  

faced the trial  and were finally found guilty and were punished for  

different  offences.   A1 was found guilty  for  offence  under  Section  

302, whereas A2 to A8 for the offence under Section 302/109 IPC.  

However, they all were acquitted for the charge of an offence under  

Section 396 IPC but were also punished for 120-B IPC.  The facts  

from the record shows that  somewhere in July 1999,  Azam Ghori  

who  died  during  the  Trial  organized  a  Tanjeem  along  with  his  

associates accused A1 to A8, hatched a conspiracy to snatch away  

the cash bag from one Ramakrishna Rao, the owner of a cycle shop  

called  ‘Krishna  Cycle  Stores’,  New  Bus  Stand,  Bodhan.   In  

pursuance  of  the  said  conspiracy  on  2nd August,  1999  accused  

chalked out plan at Sarbathi Canal Mosque, Bodhan that A1 should  

snatch the bag of the deceased and A2 Feroz Khan should drive the  

vehicle to escape from the scene after  commission of  the offence  

and remaining of them i.e. A3 to A9 should watch the movements by  

taking  shelter  near  the  shop  and  house  of  the  deceased  for  

successful implementation of their plan.  A6 Mohd. Abdul Mateen @  

Muzaffar had provided his motorcycle while A9 gave his pistol to A1  

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for the purposes of committing the crime.   It was decided that in the  

event  Ramakrishna  Rao showed any resistance and did not  hand  

over the bag containing cash, they will shoot him and run away from  

the place of occurrence.  Ramakrishna Rao was in his cycle shop  

called ‘Krishna Cycle Stores’ and also had second show collections  

of the theatre in the evening.  He used to come back to his place with  

cash.  On the night of 2nd August, 1999, a lorry loaded with spare  

parts of Hero Cycle came to the shop of the deceased and the goods  

were  unloaded  into  the  shop  by  10.30  P.M.   The  deceased  had  

second show collection from the theatre which is estimated to be of  

Rs.40,000/-.  After closing the shop, he was proceeding to his house  

which  was  about  500  to  600  feet  away  and  his  salesman  was  

accompanying him.  One Nazar and Hamid were following him and  

all of them were going on foot.  When they were about to reach the  

house of the deceased that the accused intercepted and demanded  

the deceased to handover the bag.  As already noticed, there was  

resistance and arguments,  resultantly the  accused had fired three  

shots from his pistol,  snatched the bag and ran away.  When the  

deceased fell down PW1 one Prasad, PW2, the wife of the deceased  

and  his  elder  daughter  took  the  deceased  to  the  Government  

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Hospital,  Bodhan  in  an  auto  and  as  no  doctor  available  at  the  

Hospital they took the deceased to Santhan Nursing Home where he  

was declared  dead by the  doctors.   Thereafter,  PW1 went to  the  

police station at about 11.50 P.M. and gave complaint to the Sub-

Inspector of Police Station.  The Inspector was examined as PW23  

and a complaint submitted was Ext. P.1.  On this basis, an F.I.R. was  

registered under Section 302 and 379 r/w 34 I.P.C. and Section 25 &  

27 of Indian Arms Act being Ext. P.35.  It may be noticed here that as  

per the evidence on record, the wife and daughter of the deceased  

were sitting on the first  floor of the house and they came to have  

seen  the  deceased,  PW1  coming  to  the  house  as  well  as  his  

alteration with the accused.  They had come down with the key to  

open the door for the deceased to enter the house however, when  

they opened the door the firing had taken place and the deceased  

was lying on the ground.

4. The investigating officer was examined as PW18, who took up  

the  investigation,  examined  the  witnesses  and  recorded  the  

statement after preparing the sketch of the case of occurrence Ext.  

P11  and  scene  of  offence  panchanama  Ext.  P10.   They  were  

prepared in presence of PW9.  The body of the deceased was sent  

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for postmortem.  PW14, Dr. B. Santosh conducted the autopsy over  

the  dead  body  of  the  deceased  and  issued  postmortem  report  

certificate expressing the opinion as Ext.P15.  The cause of death  

was identified to be internal hemorrhage and shock caused by a fire  

arm injuries.   

5. Test Identification Parade for both the accused was held on 6th  

July,  2000 and 29th July,  2000 by PW17 and PW20 and relevant  

proceedings were marked as Ext. P17 and P28 respectively.  After  

completion of the investigation, charge-sheet was filed in the Court.  

All the accused were subjected to trial.  The prosecution examined  

as many as 26 witnesses and relied on documentary evidence Ex.  

P1 to Ext.  P39.   After  making their  statements  under Section 313  

Cr.P.C., the accused also examined four witnesses.  Ultimately, they  

were found guilty and awarded sentence by learned Sessions Court  

as afore-noticed.  The judgment of the Sessions Court was partially  

set aside by the High Court.  Dissatisfied from the judgment of the  

High Court, the present appeal has been filed by the two appellants  

challenging the legality and correctness of the judgment of the High  

Court.  The arguments advanced on behalf of the appellants are:

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(i) The prosecution has not been able to establish the guilt of  

the accused beyond any reasonable shadow of doubt.  

Non  production  of  material  evidence,  findings  being  

recorded  on  surmises  and  their  being  no  direct  

evidence of conspiracy, the accused were entitled to  

the benefit of doubt.

(ii) The  investigation  of  the  case  was  so  faulty  that  even  

important  piece of evidence like blood stained earth,  

empties were admittedly not collected from the place  

of occurrence and no seizure memos were prepared,  

as  stated  by  the  Investigating  Officer.   This  clearly  

creates a dent in the case of the prosecution.

(iii) The findings otherwise recorded are based on no evidence  

and are perverse.   

(iv) From the case of the prosecution, it is clear that there was  

no light  at  the place of  occurrence  and the incident  

being that of 10.30 P.M. the visibility was bound to be  

NIL  and as  such,  the  version  of  the  so  called  eye-

witness was not true.   

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(v) In fact, the very persons of the eye-witnesses on the site is  

doubtful. The Identification Parade was conducted contrary  

to the settled law and in fact, it is no identification parade in  

the eye of  law.  The accused were in police custody and  

accused  as  well  as  their  photographs  had  already  been  

shown to the witnesses who were required to  identify  the  

appellant  in  the  identification  parade  which  itself  was  

conducted  after  more  than  one  year  of  the  date  of  

occurrence.   Such  identification  parade  could  not  be  the  

basis of conviction as held by this Court in Musheer Khan v.  

State of M.P. [(2010) 2 SCC 748].   

6. There  was  complete  denial  of  the  charge  by  the  

appellants having completely denied their involvement and took up  

a stand that  they had been falsely implicated in  the crime and  

PW1 and PW2 both being interested witnesses, the prosecution  

case has not been established in accordance with law.

7. Common evidence will have to be discussed for deciding the  

merit of the submissions made on behalf of the appellant.  Thus, we  

proceed to discuss all these issues together as in any case they are  

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interlinked.  First of all, we must record that PW1 and PW2 cannot be  

stated to be interested witnesses and in any case not of the kind that  

they should be disbelieved merely because they were in employment  

with the deceased and/or wife of the deceased.  The circumstances  

of  a case have to be examined in their  normal conduct.   It  is  but  

natural  that  the deceased employer who was carrying cash would  

normally ask some of his trusted employees to come with him.  PW1  

was working as a salesman.  His statement clearly shows that he  

was fully aware about the facts of the business and had stated that a  

lorry of spare parts had come on 2nd August,  1999 at about 10.30  

P.M. where PW3 and Hamid were also present.  Cash of Rs.40,000/-  

approximately  was  in  the  bag,  which  the  deceased  was  carrying.  

PW1 was walking with him, while PW3 was following from behind.  

The appellant  had shown a revolver  and had stated  that  the  bag  

should be given to him and when the deceased questioned the said  

person and PW1 wanted to interfere, he threatened him saying that if  

he took a step forward he would be shot.  Again, on being questioned  

by the owner, he shot the owner thrice with the revolver and he fell  

down.  The other person came on a motorcycle to the spot and these  

persons fled away on the motorcycle.  He clearly stated that he could  

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easily identify both the persons. This witness had sufficient time to  

recognize  the  assailant  inasmuch  as  first  the  assailant  had  an  

altercation  with  the  deceased.    His  demand  for  the  cash  bag  

containing the cash was resisted by the deceased, where after, he  

shot the deceased, snatched the bag and then waited for the vehicle-

motorcycle to come, on which both A1 and A2 fled away from the  

site.    It  was nobody’s case that these two persons were wearing  

helmets or that their faces were covered.   In other words, there was  

sufficient time and opportunity for this witness and others to see and  

recognize both the assailants.  About the availability of the light, he  

had stated that there was one tube light glowing at the house of the  

owner and there was also light from the illumination of Surya Nursing  

Home and even during the identification parade,  he had identified  

both the co-accused.  He had taken the deceased along with others  

to the Government Hospital and then to the Nursing Home.  In his  

detailed  cross-examination,  nothing  material  could  come out.   He  

specifically denied that any photographs were showed to him by the  

police on the contrary, he received a letter to go to Chanchalguda  

Jail at Hyderabad to identify the assailant.  In his cross-examination,  

he clearly stated as follows:

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“The distance between the place where  my  owner  fall  down  and  the  house  of  my  owner is about 35 feet.  The tube light was at  the third shutter which pertains to the house  of my owner.  After one year of the incident I  came  to  know  that  the  persons  who  are  responsible for the murder of my owner were  apprehended.   I  came  to  know  about  their  apprehension when the police came to me to  enquire whether I can identify the assailant.”

8. Similarly, PW2, the wife of deceased clearly stated that on the  

date of the occurrence, she had switched on the tube lights and the  

light would fall on the main road.  She also confirmed that there was  

illumination from the Nursing Home which is opposite to the house  

and about the date of incident she made the following statement:

“On 2.8.1999 at 10.45 p.m. I was sitting  by the side of the window.  I was waiting for  my  husband.   At  about  10.45  p.m.  my  husband PW.1 and another person came upto  my house.   When my husband reached my  house he had an altercation with one person.  At  that  time  PW.1  and another  person  was  there.   I  saw my husband and I got up with  keys to go down stairs to open the lock.  At  that time I heard the sound of ‘Dam’.  I heard  that sound.  By the time I got down from the  house and went to the spot my husband was  lying on the road.  Hearing my cries, my family  members  and others  gathered there.   PW.1  told me that there was a cash of Rs.40,000/-  in the bag.  When I questioned PW.1 he told  me that the said bag was taken away.  I can  identify  the  person  who had altercation  with  

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my husband.  The accused are brought near  to the witness chair and the witness pointed  out  A.1  who is  standing  in  the  fifth  position  from  the  left  side  and  said  that  A.1  had  altercation with her husband.  I am seeing A.1  today in the Court after the incident.   Police  examined me.  One motor cycle came to the  spot and took away the assailant who shot my  husband.   One person was riding the motor  cycle.”

9. In  the  cross-examination,  she  specifically  denied  the  

suggestion that she could not see the persons who are coming from  

right side on the road and she stated that the out house is adjacent  

to the main road.  PW3, Nasir Khan fully corroborated the statement  

of  PW1 and that  they stayed at  Swathi Hotel  for  taking tea.   The  

incident took place at the distance of 300 feet from the house of the  

owner.  After  hearing the sound,  she immediately ran towards the  

body  of  the  deceased  and  then  took  him  to  hospital.   Their  

statements  apparently  appear  to  be  correct.   They  have  not  

exaggerated  any  facts.   Their  statements  appear  to  be  truthful  

description of the events that occurred in their presence or of what  

they have the  knowledge.   As  far  as  PW1 is  concerned,  he is  a  

witness to the entire incident.  No doubt, the investigating officer had  

appeared as PW18 and according to him after he had taken up the  

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investigation, he was working as inspector in the police station at the  

relevant  time.   He  had  prepared  rough  sketch  of  the  place  of  

occurrence which was Ext.11 and according to him it  was a rainy  

day.  He stated that PW2 had not stated before him that there was  

sufficient illumination because of tube light and Nursing Home and  

from the public street  light.   This witness has stated that when he  

went to the place of occurrence, number of people had assembled  

there.  The following extracts of examination-in-chief of this witness,  

has  been  relied  upon  by  the  learned  Counsel  appearing  for  the  

appellant.

“It is true that PW.2 did not state before  me  that  she  would  be  watching  the  people  who will be coming to her house while sitting  at  the window during her examination.   It  is  true that  PW.2 did not  state  before me that  there  was  illumination  from  her  house  and  from the Nursing home and from public street  lights.

After taking up investigation firstly,  I  went to  the scene of offence.  I reached the scene of  offence by about 12.45 A.M.  When I went to  the  scene  of  offence  many  people  were  present there and from among the persons I  secured Shivakumar (PW9).  PW9 was in the  public but I cannot tell exactly as to where he  was standing or sitting in the public.

I have not collected anything from the scene  of  offence  as  it  was  drizzling  and  also  as  

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there was public rush at the spot.  I have not  examined any one at the auto stand.  I  saw  blood stains on the left side of the road while  facing towards Nizamabad.  The blood stains  were found on the edge of the road.  It is true  that  opposite  to  the  house of  the  deceased  there are business shops.  In Ext.P10 there is  no mention about the existence of tube lights  at the scene of offence.”

10. While  relying upon these extracts of  the examination-in-chief  

and  cross-examination  of  this  witness,  the  learned  Counsel  

appearing for the appellant contended that since the bloodstain earth  

and nothing else recovered from the premises including the empties  

of the gun shots.  The entire investigation of the case is faulty and  

cannot be relied upon.   The statement of the investigating officer is  

found to be not supporting the case of the prosecution.  The whole  

case of  the prosecution should fall.   Firstly, we cannot  read these  

statements  out  of  context  and  they  must  be  examined  in  their  

entirety.  In other words, the statement of the investigating officer has  

to  be read in  its  entirety  and then any conclusion  can be drawn.  

Certainly,  this  investigating  officer  has  failed  to  conduct  the  

investigation  as  per  the  expected  standards  and  we  have  no  

hesitation in observing that the case could have been investigated  

with greater care, caution and by application of scientific methods.  It  

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will not give the accused/appellants any benefit because PW1 was  

never confronted  with his statement  under Section 161 Cr.P.C. by  

the appellant during her cross-examination with regard to the above  

facts.  What she had stated before PW14, would be best recorded in  

the statement under Section 161 Cr.P.C.  That steps having not been  

taken by the appellant in accordance with law, now, they cannot drive  

any benefit.  Secondly, not only PW2 but even other witnesses have  

stated  that  there  was  sufficient  light  in  and  around  the  place  of  

occurrence  because  of  street  light,  light  from  the  house  of  the  

deceased, bus stand and the Nursing Home.  There is no reason for  

us to disbelieve PW1, PW3 and other witnesses who said that there  

was  sufficient  illumination  at  the  place  of  occurrence  and  the  

argument advanced by the appellants hardly has any merit.  Yes, it  

was expected of the investigating officer to seize from the place of  

occurrence such articles or items including the bloodstain earth or  

empties,  which  were  available  even  as  per  his  statement.   This  

lacuna in investigation stands completely covered by the statement  

of the witness, the medical report and the eye-witness version.  Dr.  

K.  Raja  Gopal  Reddy,  Professor  and  Head  of  the  Forensic  

Department,  Gandhi  Medical  College  who  had  performed  

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postmortem was examined as PW24 and he stated that his opinion  

had been sought by the investigating officer.  After going through the  

report  and  the  inquest  report,  he  had  stated  that  the  probable  

weapon used  was rifle fire-arm and Ext.P13  was his  opinion.   In  

Ext.P15  which  is  the  postmortem  report,  the  injuries  have  been  

described as under:

          “11.Injuries:

Fire arm:

Entry wounds: 1. Ulnar  medical  surface  of  right  wrist  2  cms  

diameter. 2. Oblique 3 cm x 2 cm, below medical end of  

right clavicle in front of chest. 3. Circular 2 cm diameter below medical end of  

left clavicle in front of chest.

Exist wounds: 1. Radial  lateral  surface  of  right  wrist  3  cm  

diameter. 2. Oblong 4  x 3 cm post  surface  of  right  side  

chest by the side of spine. 3. Circular 3.5 cm, 3 cm below the exist wound  

No.2.”

11. The above evidence of the doctors as well as that of the PW1  

clearly establishes the story of the prosecution.  According to PW1,  

the  assailants  fired  through  armed  shots  and  as  per  medical  

evidence also, there are three injuries and exists injuries on the body  

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of the deceased.  We have also noticed that the investigating officer  

failed  to  perform  his  duties  appropriately  in  not  recovering  the  

bloodstain earth as well as the empties since they were not in the  

body of the deceased.  According to the investigating officer, there  

were few other people and there was a bus stand near the place of  

occurrence.   The  Investigating  Officer  fully  corroborated  the  

statement  of  PW1 and other  witnesses.   Another  important  factor  

which has to be noticed is, probably the way this investigating officer  

has conducted the investigation, that investigation of the case was  

transferred to CID after some time and, it was CID which completed  

investigation of  the case.   PW25 and PW26 have then conducted  

investigation at a later stage.  According to PW25, M. Vankata Rao  

he had arrested the accused as well as seized certain items vide Ext.  

P38 including a scooter while Ashok Kumar PW26 claimed that he  

was working as inspector and as per Memo No. 1214/C12/CID/2000  

of  the  Additional  DGP,  CID  this  case  was  given  to  him  for  

investigation.   After  the  arrest  of  Mirza  Qasim  Baig,  A.4  and  his  

confessional statement, the systematic investigation was conducted  

by him and he arrested accused Kameel as well as accused Feroz  

somewhere on 2nd June, 2000.  He even recorded the statement of  

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PW4.   On 17th June,  2000,  he submitted  a  requisition  before  the  

JFCM for holding Test Identification Parade for identification of both  

the  appellants  and  he  was  the  main  investigating  officer  who  

conducted the investigation and arrested the main accused.  During  

investigation a diary/writing was also recovered relating to the activity  

of the accused particularly, the occurrence in question.  The writing  

was  sent  for  comparison  to  the  Forensic  Science  Laboratory  at  

Hyderabad and which had expressed an opinion that  the persons  

who wrote the red enclosed writings marked as S1 to S29 also wrote  

the red enclosed writing marked Q1 to Q378, Q131/1 and Q.122/1.  

The identification parade was conducted on 29th July, 2000 at 3.30  

P.M.  vide  Ext.P28.   This  was  conducted  and  completed  by  8th  

Metropolitan Magistrate, Hyderabad.  This identification parade was  

performed  in  the  jailor’s  office  room  and  the  witnesses  were  

examined by the Magistrate.  The Magistrate had required and the  

jailor  then  had  provided non-suspect  persons  who were asked  to  

participate  in  the  parade  after  the  accused  had  expressed  his  

satisfaction, he  even was asked to stand in any place in the row with  

the known-suspects  and thereafter  Y.  Krishna Mohan (PW-1) was  

brought to the Test Identification Parade and then the accused was  

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identified  in  accordance  with  law.   The  identification  parade  was  

closed.   Despite the above Test Identification Parade having been  

conducted  in  accordance  with  law,  the  appellants  have  raised  

objections to the identification parade and have stated that they were  

in illegal confinement of the police.  Their photographs were shown  

and the identification parade itself has been conducted after such a  

long time.  While relying upon the case of Musheer Khan (supra), it is  

contended  that  they  were  retained  in  police  custody  and  that  

discrepancies discernable in his identification by the witness renders  

the identification unbelievable and improper.  

12. These arguments do not impress us.  The accused himself was  

arrested  after  one  year  and  it  was  only  thereafter  that  the  

investigating officers had been able to collect  substantial  evidence  

and then after arresting all the concerned accused, the identification  

parade was conducted on 27th July, 2000.  Thus, there is no delay in  

conducting the identification parade.  There is nothing on record to  

show  or  prove  that  these  accused  were  in  illegal  custody  or  

confinement  of  the police.   In  order  to  prove this  plea,  they have  

produced  four  witnesses  D1  to  D4  but  they  could  not  bring  any  

records  or  any other  cogent  or  substantial  evidence  to  prove the  

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alleged case of illegal confinement and/or for that matter that they  

were shown to the witnesses before the identification  parade was  

conducted by the investigating officer.  Both the learned Trial Court  

as  well  as  the  High  Court  had  disbelieved  the  witnesses  of  the  

defence in that regard.

13. Somewhat  similar  plea  was taken  in  regard  to  identification,  

according to the accused they were shown to the witnesses while in  

custody and their photographs have been taken from their residence  

which  in  turn  were  also  shown to  the  witnesses.   This  plea  was  

rejected by the Court in a very recent judgment.  After discussing the  

law in some detail in the case of Siddartha Vashisht @ Manu Sharma  

v.  State  (NCT of  Delhi)  [JT  2010 (4)  SC 107],  the  Court  held  as  

under:

“113. It is also contended by the defence that  since  the  photographs  were  shown  to  the  witnesses  this  circumstance  renders  the  whole  evidence  of  identification  in  Court  as  inadmissible.  For this, it was pointed out that  photo  identification  or  TIP  before  the  Magistrate, are all  aides in investigation and  do  not  form  substantive  evidence.  Substantive evidence is  the evidence of  the  witness in the court on oath, which can never  be rendered inadmissible on this count.  It is  further pointed out that photo identification is  

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not hit by 162 Cr.P.C. as adverted to by the  defence  as  the  photographs  have not  been  signed  by the  witnesses.   In  support  of  his  argument  the  senior  counsel  for  Manu  Sharma  relies  on  the  judgment  of  Kartar  Singh v. Union of India [(1994) 3 SCC 569] at  page 711 wherein while dealing with Section  22 TADA the Court observed that photo TIP is  bad in  law.  It  is  useful  to  mention that  the  said  judgment  has  been  distinguished  in  Umar  Abdul  Sakoor  Sorathia  v.  Intelligence  Officer,  Narcotic  Control  Bureau,  [(2000)  1  SCC  138]  at  page  143  where  a  Photo  Identification has been held to be valid.  The  relevant  extract  of  the  said  judgment  is  as  follows:-

“10. The next circumstance highlighted by the  learned counsel for the respondent  is that a  photo  of  the  appellant  was  shown  to  Mr.  Albert Mkhatshwa later and he identified that  figure  in  the  photo  as  the  person  whom he  saw driving the car at the time of interception  of the truck.

11.  It  was  contended  that  identification  by  photo  is  inadmissible  is  evidence  and,  therefore, the same cannot be used.  No legal  provision  has  been  brought  to  our  notice,  which  inhibits  the  admissibility  of  such  evidence.   However,  learned counsel  invited  our  attention  to  the  observations  of  the  Constitution Bench in Kartar Singh v. State of  Punjab which struck down Section 22 of the  Terrorist and Disruptive Activities (Prevention)  Act, 1987.  By that provision the evidence of a  witness  regarding  identification  of  a  proclaimed offender in a terrorist case on the  basis of the photograph was given the same  value as the evidence of a test identification  

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parade.  This Court observed in that contest:  (SCC p.711, para 361)

361.   If  the  evidence  regarding  the  identification  on  the  basis  of  a  photograph  is  to  be  held  to  have  the  same value  as  the  evidence  of  a  test  identification parade, we feel that gross  injustice to the detriment of the persons  suspected  may  result.   Therefore,  we  are inclined to strike down this provision  and accordingly we strike down Section  22 of the Act.

12.  In the present case prosecution does not  say that they would rest with the identification  made  by  Mr.  Mkhatshwa  when  the  photograph was shown to him.  Prosecution  has to examine him as a witness in the court  and  he  has  to  identify  the  accused  in  the  court.   Then  alone  it  would  become  substantive  evidence.   But  that  does  not  mean that  at his stage the court  is disabled  from  considering  the  prospect  of  such  a  witness  correctly  identifying  the  appellant  during trial.   In so considering the court can  take  into  account  the  fact  that  during  investigation the photograph of the appellant  was shown to  the  witness  and he identified  that person as the one whom he saw at the  relevant time.  It must be borne in mind that  the appellant is not a proclaimed offender and  we  are  not  considering  the  eventuality  in  which  he  would  be  so  proclaimed.   So  the  observations  made  in  Kartar  Singh  in  a  different  context  is  of  no  avail  to  the  appellant.”

Even a Test Identification Parade before  a  Magistrate  is  otherwise,  is  hit  by  Section  

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162 of  the  Code.   Therefore,  to  say that  a  photo  identification  is  hit  by  section  162  is  wrong.   It  is  not  a  substantive  piece  of  evidence.  It is only by virtue of section 9 of  the Evidence Act that the same i.e. the act of  identification  becomes  admissible  in  Court.  The logic behind TIP, which will include photo  identification lies in the fact that it is only an  aid to investigation, where an accused is not  known to  the  witnesses,  the  IO  conducts  a  TIP to ensure that he has got the right person  as an accused.  The practice is not born out  of procedure, but out of prudence.  At best it  can  be  brought  under  Section  8  of  the  Evidence  Act,  as  evidence  of  conduct  of  a  witness in photo identifying the accused in the  presence  of  an IO or  the Magistrate,  during  the course of an investigation.”

14. In view of the clear statement of law, we have no hesitation in  

rejecting the arguments of the appellant in relation to conduct of the  

identification parade.

15. In the statement under Section 313 Cr.P.C., the accused took a  

plea  of  complete  denial.   According  to  them,  they were asked  to  

come to the police station for interrogation and then were produced  

in Court.  They offered no explanations and as already noticed, they  

even examined four witnesses in support of their case.  As already  

noticed,  nothing  material  could  be  established  by  these  defence  

witnesses, specially, in regard to the present two accused.  However,  

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accused had been acquitted by the Court, as the prosecution could  

not produce any cogent and material evidence except the diary and  

therefore,  the  charge  of  conspiracy under  Section  120-B  was not  

proved against  them.  Vide Ext.  P18 & Ext.  P19 the accused had  

been  arrested  and  produced  before  the  Court  of  competent  

jurisdiction.   The extract  of  diary which was recovered during  the  

investigation had various entries, which related to the planning of the  

crime,  its  commission  and result  thereof.    This  aspect  has been  

discussed by the learned Trial Court in para 28 of its judgment.  The  

High  Court  has  also  examined this  question  in  some elaboration.  

The concurrent  finding thus has been that  these extracts from the  

diary provide substantial support to the case of the prosecution. On  

July,  1999  they  had  conspired  and  after  consultation  in  Sarbathi  

Canal  Mosque,  Bodhan  that  after  closing  the  show  room  the  

deceased goes on foot and nobody is there on the road and that the  

work has to be done within 2-3 days.  These questions have been  

discussed  by the  trial  court  as  well  as  by the  High Court  in  their  

correct perspective and upon examination of the entire documentary  

and ocular evidence; we do not find any reason to interfere in the  

concurrent finding recorded by the Courts.   

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16. We are of the considered view that the prosecution has been  

able to prove its case beyond reasonable doubt.  The gravity of the  

offence, the manner in which it had been committed and the conduct  

of the accused do not call for any interference by this Court even on  

the question of quantum of sentence.   

17. For the manner in which the Investigating Officer (PW-25)  had  

conducted the investigation requires much to be desired.  We cannot  

also  ignore  the  fact  that  he  showed  utter  carelessness  in  not  

collecting  the  blood stained  earth  and empties  and other  material  

pieces of evidence, which were available at the place of occurrence.  

The occurrence had taken place late in night i.e. at 10.45 P.M. and  

hardly  there  would  be  such  gathering.    It  was  expected  of  the  

Investigating  Officer  to  perform  his  duties  with  greater  caution,  

sincerity and by taking recourse to appropriate scientific methods for  

investigating  such a heinous  crime.    Thus we direct  the Director  

General of Police, Andhra Pradesh to examine this aspect and take  

action in accordance with law.  

18. Consequently,  the appeal  is  without any merit  and is hereby  

dismissed.

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........................................J. [ B.S. CHAUHAN ]

........................................J.       [ SWATANTER KUMAR ]

New Delhi July 8, 2010

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